This autumn, we have been hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Thomas Berg (University of St. Thomas (Minnesota)) responds to Muñoz. For other posts in this series, please click here.
In his excellent journal article “Two Concepts of Religious Liberty,” and in a recent LRF blog post, Vincent Philip Muñoz argues that the founders’ natural-rights theory of religious freedom is very different from the modern practice of protecting religious exercise through exemption from otherwise valid, generally applicable laws. The original understanding, he says, supports the rule of Employment Division v. Smith’s rejection of mandatory exemptions under the Free Exercise, rather than Sherbert v. Verner’s rule mandating exemptions unless the government can show a “compelling interest” in burdening religious exercise. And Muñoz criticizes the arguments of Michael McConnell, who concluded that while the question was close, “[t]he historical record casts doubt on [Smith’s] interpretation of the free exercise clause.”
Under current law, this historical debate is of limited importance. Although the exemptions approach has been rejected for the Free Exercise Clause, it has been adopted in some form in federal legislation and in the legislation or constitutional rulings of more than 30 states. As a result, the exemptions approach applies to all federal laws, to every state’s land use and prison regulations, and, in much of the nation, to the full body of state and local laws. Muñoz says that legislatures should decide whether to exempt religion from general law; many of them have decided to do so through religious freedom restoration acts (RFRAs), federal and state.
In fact, however, the exemptions approach finds considerable support in the religious-freedom tradition of the founding; it may even be the best historical reading, although that is a difficult question. Smith was not dictated by originalism; the Court should be willing to entertain modifying or overruling it; and at the very least legislatures and state courts should feel no embarrassment at adopting the exemptions approach. I will first discuss the historical issues and then turn to some of Muñoz’s other qualms about the exemptions approach.
The Original Understanding, Exemptions, and “Harms to Others”
Muñoz’s journal article focuses heavily on the natural-rights outlook of the framers, arguing that it supports a “jurisdictional” approach that simply prevents government from regulating religion as religion: that is, from targeting it with a non-neutral law. But that argument ignored the aspect of founding-era history that, for McConnell, was the most probative: the religious-freedom provisions adopted in state constitutions between 1776 and 1790. All of these provisions created a prima facie right to “exercise” religion or worship God according to one’s conscience; the vast majority of them then included provisos limiting the right when it caused certain defined categories of harm to others or to society. In several states, the harms that set the boundaries of religious freedom were only those affecting the “peace or safety of the state”; some other states added “acts of licentiousness” or those that disturbed “good order” or the “happiness” of society.
The “peace and safety” provisos by their terms set the boundary of religious freedom not by whether the law in question targets religion, but whether the religious conduct in question causes certain harms to others. As McConnell pointed out, the provisos only make sense if the right of free exercise calls for exemptions from the law in some circumstances: only then is there need to specify the standard that a law must meet. And “peace or safety” cannot be equated with “whatever the general, religion-neutral laws happen to say.” In some cases, drafters fought over the formulation of the provisos: George Mason’s first draft of Virginia’s provision limited religious freedom to prevent disturbance to the “peace, safety or happiness of society,” but Madison objected that this was too restrictive and proposed protection except where “the preservation of equal liberty and the existence of the State are manifestly endangered.” As McConnell pointed out, “the dispute between Madison and Mason would not have mattered if the proviso were of no legal significance, and the proviso would have been of no legal significance if the ‘full and free exercise of religion’ did not include the right of exemption from generally applicable laws that conflict with religious conscience.”
Although the Free Exercise Clause is drafted differently from many of the state provisions, there is no good reason to think that the drafters or the public understood it as doing something different. The free exercise guarantee was meant largely to preserve the rights that Americans already enjoyed from interference by the new federal government.
In later life, Madison wrote that free exercise should prevail “in every case where it does not trespass on private rights or the public peace.” That translates reasonably well to a standard in which religious exercise may be limited by direct harms to other individuals’ person or property or significant harms to the peace and order of society as a whole. Such a standard may be less demanding than RFRA’s “compelling interest” test (and there is room for arguing what the standard should be if Smith were overruled). But it certainly contemplates exemptions and does not mean that a law gets a pass merely because it is generally applicable.
Religious-freedom proponents in the late 18th century defined the scope of the right by reference to basic harms to persons, property, and peace: for example, Pierre Bayle argued that magistrates were “obliged to obliged to maintain society and punish all those who destroy the foundations, as murderers and robbers do.” The boundary of this original “basic harms” principle must be justiciable today—it cannot be whatever legislators or administrators say it is—because since the founding, government’s reach has greatly expanded. The modern regulatory state goes far beyond preventing direct harms to individuals’ body or property or threats to peace and order; some generally applicable laws prohibit actions whose negative effects are diffuse, far in the future, or speculative. If such laws can be applied carte blanche to religious activity simply because they are generally applicable, the scope of free exercise will shrink dramatically—hardly what one would expect in the case of a “natural right.”
Muñoz finally addresses the “peace and safety” provisos in his LRF blog post. He first suggests they are unimportant because they were absent from three state constitutions and from the Free Exercise Clause itself. Then, shifting, he explains those absences on the ground that the provisos were “superfluous” anyway, since “the scope of the natural right of religious liberty was [inherently] bounded by respect for the natural rights of others.” But that is just to say that the limits of free exercise are defined by certain basic harms to others or to society—not by whatever a generally applicable law happens to define as a legal wrong. At the end of Muñoz’s argument, then, it seems that the founders’ natural-right framework does not point to the rule of Employment Division v. Smith. If anything, it points more to the principle against “harms to others,” which entails that there may be exemptions from laws that do not rests on such harms.
Sometimes the founding generation did speak of jurisdiction-type limits on regulating religion as religion; but they also spoke of a right to practice religion as long as it did not deny others’ rights or threaten public peace. The latter phrasing best covers the cases where a generally applicable law burdens religion, and exemptions in those cases can coexist with a virtually absolute rule of protection against regulating religion as religion.
Other Comparisons Between the Exemptions and “Targeting” Approaches
In the final section of his journal article, Muñoz compares the rule against targeting religion (the offshoot, he claims, the natural-rights framework) with the exemptions approach. He concludes that the choice presents a tradeoff: exemptionism “offers far more constitutional breadth,” protecting against unintended burdens from generally applicable laws, but “[t]his breadth is exchanged for depth,” because exemptionism allows government even to target religion as long as it can give a compelling reason for doing so. Muñoz does not adjudicate whether the tradeoff is worth it; but let me give some reasons why, apart from historical pedigree, the exemptions approach is preferable to the targeting, or general applicability, rule.
First, as I’ve already noted, in the modern state some generally applicable laws significantly affect the very core of religious exercise: in some applications they could easily be said to cross a jurisdictional line. Employment Division v. Smith, for example, involved the key sacrament of Native American worship ceremonies, peyote ingestion: if prohibiting it does not prohibit free exercise, neither does prohibiting the serving of wine in the Mass. Likewise, in his journal article Muñoz calls the ministerial exception to anti-discrimination law (specifically, the Hosanna-Tabor ruling) an example of constitutional exemptionism, which presumably means it’s unjustified under his account. Hosanna-Tabor indeed declared an exemption from a general anti-discrimination law that did not target religion. But the unanimous Court held—correctly in my view—that the selection of church leaders is properly seen as a matter of “internal governance,” not a cognizable harm to outsiders or society (and that the founding generation thought so too). The “harm to others” principle can explain Hosanna-Tabor; the general-applicability rule cannot.
Second, I see no basis for Muñoz’s worry that the exemptions approach will give the government any meaningful room to target religion by asserting a compelling interest. The very decision he cites, Church of the Lukumi Babalu Aye v. City of Hialeah, unanimously struck down ordinances that the Court found had targeted animal sacrifices by the Santeria sect. Lukumi made clear that a law that “advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” By leaving comparable nonreligious conduct unregulated, the government not only undercuts its claim of a compelling interest, it also directly flunks the separate requirement of “narrow tailoring.” Once the Court in Lukumi found that the ordinances singled out religious conduct (which took a bit of analysis), it made very short work of them.
As a result, even under the umbrella of the compelling-interest test, the case law is all but absolute in striking down laws that target religion, but more forgiving toward general laws that restrict religion in particular applications. Again, a very strict ban on regulating religion as religion can coincide with less strict but still meaningful review of the application of general, religion-neutral laws.
Finally, Muñoz complains that the exemptions approach fails to provide clear categories. But even assuming that clarity is an overriding consideration here, it cuts both ways, for often it is likewise unclear whether a law is targeting religion. Even in Lukumi, a relatively easy case, the animal-killing ordinances for the most part did not explicitly single out “religion”; they were gerrymandered to do so, and the Court had to spend some time demonstrating their lack of neutrality. Other cases are truly uncertain: is it enough to show targeting of religion, for example, that the government makes exceptions for secular interests in a significant minority of situations (say 30 percent of the population) but refuses to allow a religious exception? If courts are going to protect religious exercise in anything more than the most explicit case of targeting religion, they will have to accept some uncertainty in the application of the standard. That uncertainty is worth it in order to have meaningful protection of what is—as Muñoz correctly emphasizes—a natural right.
 Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion, 110 Amer. Poli. Sci. Rev. 369 (May 2016) (hereinafter “Muñoz, APSR”).
 Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1420 (1990).
 Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq.; Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq.
 See McConnell, supra, at 1455-58, 1461-62 (quoting and categorizing state provisions).
 Id. at 1463.
 Pierre Bayle, Philosophical Commentary on These Words of Christ: Compel Them To Come In, in Pierre Bayle’s Philosophical Commentary: A Modern Translation and Critical Interpretation 7, 167 (Amie Goodman Tannenbaum trans., 1987); see Michael W. McConnell, Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, 39 Wm. & Mary L. Rev. 819, 824-27 (1998) (collecting this and similar quotes).
 He is partly wrong here. Delaware’s Constitution gave all Christians equal rights of freedom unless they “disturb[ed] the Peace, the Happiness or Safety of Society.” Del. Declaration of Rights and Fundamental Rules of 1776, § 3. And Jefferson’s Virginia Religious Freedom Statute stated in its preamble that “it is time enough for [government] to interfere when principles break out into overt acts against peace and good order.”
 Muñoz, APSR at 380 (citing Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012)).
 See Hosanna-Tabor, 132 S. Ct. at 706 (recognizing protection for “internal governance”); id. at 702-04 (summarizing the history of protections for clergy selection).
 Some of Muñoz’s language actually leaves raises doubt whether he would reject the mandatory ministerial exception or even a peyote exemption. While he usually describes the natural right of free exercise as a right against government targeting of religion, he sometimes he describes it as the right to worship (see, e.g., Muñoz, APSR at 374, 380)—which arguably would be infringed if the religious community could not select its worship leaders or maintain its sacraments. This is another place where he shifts, confusingly, between “non-targeting” and other descriptions of the right (see also text supra following n.10).
 508 U.S. 520 (1993).
 Id. at 546.
 See, e.g., Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) (university requirement that freshmen live in dorms was not generally applicable when exemptions had been made covering roughly one-third of the class).